The Skripals before the Court of Protection – more detailed analysis

The Court of Protection was thrust into the centre of a major international incident in SSHD v Sergei Skripal; SSHD v Yulia Skripal [2018] EWCOP 8, concerning Sergei Skripa and his daughter Yulia and, specifically, whether it was in their best interests for the Organisation for the Prohibition of Chemical Weapons to:

(1) Collect fresh blood samples from Mr and Ms Skripal to

a) Undertake their own analysis in relation to evidence of nerve agents,

b) conduct DNA analysis to confirm the samples originally tested by Porton Down are from Mr and Ms Skripal,

(2) Analyse the medical records of Mr and Ms Skripal setting out their treatment since 4 March 2018,

(3) Re-test the samples already analysed by Porton Down.

As both Mr Skripal and Ms Skripal were unconscious, under heavy sedation, and neither were in a position to consent to the taking of further blood samples for these purposes or to the disclosure of their medical records Salisbury NHS Foundation Trust confirmed to the UK Government that a court order would be required to authorise (a) and (b) above. The SSHD therefore applied on an urgent basis to the Court of Protection for personal welfare orders. In his judgment, Williams J had to consider a number of discrete matters.

Public or private hearing?

Williams J gave a brief overview of Part 4 COPR and PD4C, concerning transparency. He noted that there was an apparent tension between the ‘General Rule’ in COPR 4.1 that proceedings will be heard in private and the effect of PD4C2.1 to the effect that the court will ordinarily make an order for the hearing to be in public unless it appears to the court there is a good reason for not making the order. However, he did not seek to resolve that apparent tension on the basis that the “unique and exceptional circumstances” of the application made it clear that the ‘General Rule’ should apply, noting a series of factors, in particular the sensitivity of the evidence and the matters before him. He therefore held that the urgent hearing should take place in private but his judgment would be published in accordance with COPR 4.2(2)(b).

Permission, participation and consular notification

Williams J had no hesitation in holding that permission should be granted in each case, both to be listed together, and that Mr and Ms Skripal should be joined with the Official Solicitor appointed to act as litigation friend for each of them. Perhaps betraying his background as a family practitioner with extensive experience of cross-border cases, he raised of his own motion the question of whether this rise to any notification obligation pursuant to Articles 36 and 37 of the Vienna Convention on Consular Relations of 24 April 1963 as Ms Skripal is a Russian national although Mr Skripal became a British national. The President had previously given guidance on this issue in the context of care cases in the Family Court in Re E (A Child) [2014] EWHC 6 (Fam). He noted that:

Mr Thomas QC [for the SSHD] submitted that as there is no domestic implementation of Art 37 no obligation arises. He also questioned whether the court could be a competent authority. He noted that the Convention is implemented by section 1 and Schedule 1 of the Consular Relations Act 1968 and that this does not include Article 37. I note that at paragraphs 41 and 44 in Re E (above) the President noted the issue in relation to the effect of Article 37 in public international and English domestic law. Mr Sachdeva QC [for the Skripals] drew my attention to the context in which the President offered the guidance and that it was guidance only for the purposes of care cases in the family court. Both Mr Thomas QC and Mr Sachdeva QC also submitted that even if (and it is a very big if) that guidance could be transposed into the Court of Protection there was good reason for not imposing a notification obligation still less the other obligations the President identified in paragraph 47 of Re E. I am satisfied for the reasons set out above that there is no notification obligation in law on this court. The nature and extent of any good practice which might be followed in Court of Protection cases where a foreign national is the subject of an application may require consideration in another case. In practice, the Russian consular authorities will be made aware of these proceedings because this judgment will be published. I do not consider it necessary to list the issue for the sort of further extensive argument that would be necessary to enable the court to determine if any good practice guidance should be given.

Habitual residence

As Williams J, the MCA 2005 deals with the jurisdiction of the court by implementing into domestic law the jurisdictional provisions contained in the 2000 Convention on the International Protection of Adults; s.63 MCA 2005 and Sch 3. Part 2 and in particular paragraphs 7(1)(a), (c) and (d). Thus the courts of England and Wales would have jurisdiction over a person habitually resident in England and Wales or a person present in England and Wales if the measure is urgent. Where the court is unable to ascertain habitual residence the court is to treat the person as habitually resident in England and Wales.

At paragraph 20, he noted that “[t]he evidence before me does not enable me to ascertain the habitual residence of either Mr Skripal or Ms Skripal. I am therefore to treat them as habitually resident in England and Wales and thus jurisdiction arises under Schedule 3 paragraph 7(1)(a). In any event I am satisfied that in respect of both Mr and Ms Skripal I have jurisdiction pursuant [to] Schedule 3, paragraph 7(1)(c) to make the orders sought on the basis that whatever other jurisdiction may exist they are present and the measures are urgent.”

Best interests

The unique circumstances of the case required Williams J to examine how broadly the concept of ‘best interests’ could stretch in circumstances where there was no evidence as to either Mr Skripal’s or Ms Skripal’s past or present wishes and feelings in relation to the issues at hand. As well as the ‘usual suspects’ in terms of case-law, Williams J also noted the statutory Code of Practice identifies at para 5.47-8 the possibility that other factors that the person lacking capacity might consider if they were able to could “include the effect of the decision on other people….. the duties of a responsible citizen.”

His careful analysis of how best interests was to play out on the facts of this unusual case merits reproduction in full:

31. There is little or no evidence to assist me in identifying any particular beliefs or values which either Mr Skripal or Ms Skripal held for the purposes of applying s.4(6)(b). The case is put both by the Secretary of State and the Official Solicitor on the basis of how the beliefs and values of the reasonable adult subjected to an attack of any sort, but particularly of this sort, might influence their decision. Although it would be impossible for me to be unaware of what is in the public domain about Mr Skripal and Ms Skripal that is not evidenced before me and so I am constrained to approach this decision at this moment in time on the basis of assumptions as to how a reasonable citizen would approach matters. In the absence of any evidence to show that either Mr Skripal or Ms Skripal was not a reasonable citizen that is how I will approach it. The evidence establishes that the OPCW is an independent organisation with the support of 192 nation States and one of whose primary tasks is providing technical assistance in relation to chemical weapons issues. Their procedures appear to be rigorous and robust – as would be expected given the subject matter of their work. Their enquiry can be expected to be entirely objective and independent. The results of their enquiry will likely hold very considerable weight in any forum. Their enquiry is therefore likely to produce the most robust, objective, independent and reliable material which will inform any determination of what happened to Mr Skripal and Ms Skripal. That might simply confirm the current conclusions, it might elaborate or clarify them, it might reach a different conclusion. Although the Secretary of State does not believe the latter prospect to be likely given her confidence in Porton Down’s findings I do not think the possibility can be ignored – and in particular I do not think an individual faced with supporting or not supporting such an inquiry would ignore that possibility at this stage.

32. Most reasonable citizens in my experience have a quite acute sense of justice and injustice. Most want to secure the best information about what has happened when a serious crime is alleged to have been committed. I accept that such a person would believe in the rule of law; that justice requires that crime or serious allegations of crime are thoroughly investigated; that where possible answers are found as to who, how and why a crime was perpetrated, that where possible truth is spoken to power; that no-one whether an individual or a State is above or beyond the reach of the law and that in these turbulent times what can be done to support the effective operation of international conventions is done. Whilst I don’t assume that the reasonable citizen would necessarily have asked himself or herself those sorts of questions in quite such detail I do believe that if those issues were put to them they would adopt them and they would influence their decision. In any event all go to the general point that the reasonable citizen, including Mr Skripal and Ms Skripal believe that justice should be done. The conduct of the investigations proposed by the OPCW will further the general aim of justice being done as well as perhaps the more precisely identified goals which Mr Eadie QC identified in the course of argument. I accept that Mr Skripal and Ms Skripal’s decision would be influenced by these values and beliefs and that the influence would be in favour of consenting to the taking and testing of samples and disclosure of notes. I am satisfied that an inquiry such as the OPCW will conduct which might verify Porton Down’s conclusion, might elaborate or clarify them or might reach a different conclusion is something they would wish be conducted and they would want to assist in that by providing samples.

33. Even if I am wrong on these assumptions as to their beliefs or views I am satisfied it is in the broad parameters of their best interests for it to be known as far as may be possible what occurred to them and the OPCW enquiry will promote that aspect of their best interests.

34. Quite separately I accept that there may be some potential medical benefit in the tests being conducted by the OPCW in that they may identify some matter which sheds further light on the nature of the agent involved and thus the treatment that might be administered. I understand that the Secretary of State reposes complete confidence in the results of the tests carried out by Porton Down but I believe both that Mr Skripal and Ms Skripal would wish for the further analysis (and so s.4(6)(c) would be engaged) but that also objectively there is benefit in the expertise of the OPCW also being brought to bear even if the possibility of them uncovering something useful from a medical perspective may be slight.

35. Those matters therefore support the conclusion that it is in the best interests of Mr Skripal and Ms Skripal to have further blood samples taken and for their medical records to be disclosed.

36. On the other side of the equation what points to such steps not being in their best interests or being harmful? The taking of the modest blood samples proposed through the cannula already in situ will have very little impact. ZZ [their treating consultant] is of the opinion that it will be unlikely to adversely effect their clinical condition. The involvement of the OPCW and the use to which the results may be put in support of the pursuit of ‘justice’ will no doubt lead to further publicity but it seems to me to be unlikely to lead to any further intrusion than is currently the case and assuming that Mr Skripal and Ms Skripal regain consciousness so as to be aware of it. Does the authorisation of further testing create any further risk to the physical safety of Mr Skripal or Ms Skripal? I have not been addressed on this issue – theoretically I suppose it might if it were thought the death of Mr Skripal and Ms Skripal prior to the taking of samples might undermine the efficacy of the evidence gathering exercise (as opined by DD [a Porton Down Scientific Adviser]). The Secretary of State has confirmed that measures are already in place to ensure their physical safety. Does the disclosure of medical notes to the OPCW amount to an intrusion into their privacy which is not in their best interests? I accept ZZ’s point that disclosure of medical records should only go so far as is necessary and this will cover disclosure from the period 4 March 2018 and for the specific information that the OPCW has sought. If it is sought I consider that it is in their best interests that OPCW is provided with copies of the relevant records not merely having sight of them. The processes which are in place for maintaining the confidentiality of such records (along with the integrity of the samples) which are evidenced satisfy me that copies could be provided subject to their destruction or return at the conclusion of the enquiry.

37. The overall balance in the evaluation of the best interests of Mr Skripal and Ms Skripal assessed on a broad spectrum and taking account of the pros and cons of taking and testing the samples and disclosing the notes in my judgment falls very clearly in favour of the taking of the samples, their submission for analysis by OPCW and the disclosure of the medical notes to aid that process. In so far as it is necessary it is also lawful and in their best interests that the existing samples are provided to OPCW for further testing.

Williams J made orders accordingly.

Comment

It is interesting that Williams J chose to go down the ‘responsible citizen’ route as the primary route to reach the (obviously correct) conclusion that it was in the Skripals’ best interests for the relevant steps to be taken. Other judges might have placed more emphasis upon his alternative route, namely that it was equally, if not, possibly even more likely that the Skripals would have wanted to take any opportunity to explore a course of action which might give rise to even a small possibility of medical benefit to them. There is undoubtedly a place for altruism or being seen to ‘do the right thing’ in the conception of best interests (see, in addition to the TJ case cited, Re Peter Jones and the pre-MCA case of Re Y (Mental Incapacity: Bone marrow transplant) [1996] 2 FLR 787). There is, equally, clear authority for the proposition that the Court of Protection can, in some cases, be entitled to take steps in the name of a person’s best interests to seek to secure even the slightest chance of a medical improvement: see, e.g. B v D[2017] EWCOP 15. Which route one chooses to reach the outcome in this case depends, one suspects, on one’s view of human nature.

Very much as a side-note, I note that the apparent tension that Williams J notes in relation to the ‘General Rule’ and the Transparency Practice Direction is a side-effect of the fact that they represent the clunky but necessary work-around for the fact that the MCA 2005 does not contain the automatic restrictions on the publication of specific types of information about the subject of proceedings that applies in relation to children. This means that it is necessary for an order to be made in each case to enable the proceedings to take place in public (which is intended to the default following the completion of the Transparency Pilot) but with suitable protections relating to the identities of the parties and private and sensitive information that is regularly put before it). It is very much to be hoped that when the MCA is amended in due course to implement the Law Commission’s Mental Capacity (Amendment) Bill, the opportunity will be taken to introduce into primary legislation a provision which will enable this process to be streamlined.

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